OLR ‘not an excessive sentence’ for serial sex offender, appeal judges rule

The Appeal Court of the High Court of Justiciary refused the appeal after ruling that the sentencing judge had “no option” but to impose an OLR.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lady Clark of Calton heard that the appellant “JR” was convicted of a charge of raping his cousin (born 1993) on various occasions between 2003 and 2011; and of raping another female on 25 October 2014.

In making a Risk Assessment Order the trial judge was conscious that evidence had been given at trial on two further charges, withdrawn for evidential reasons, which were in respect of two further female complainers – one of which was a charge of lewd and libidinous practises towards a seven-year-old girl and the other was a breach of the peace with a sexual element.

However, the sentence was challenged on the basis even with a classification of “high risk” there was an alternative available in the form of an extended sentence, and that the offences were instances of “drunken opportunism” in respect of which there was the prospect of change over time, which required to be considered in contemplation of “future risk”.

It was submitted that the issue was what risk the appellant might present to the public after the potentially beneficial effect of the intervention of any determinate sentence had been taken into account, but this had not adequately been reflected by either the risk assessor or the sentencing judge who had given “insufficient consideration” to the effect of post-release supervision from an extended sentence.

Further, the effect of the Prisoners Control and Release (Scotland) Act 2015 was that the appellant would have had to complete the whole custodial term of any extended sentence, making such a sentence a “more compelling alternative” as it had the effect of making an extended sentence “more punitive” and enabled an “escalation” in sentencing without the need for an OLR.

Refusing the appeal, the judges noted that the appellant had a “significant history” of offending.

He was convicted of attempted rape at the High Court of Justiciary in Perth in 2010, when a sentence of probation for three years was imposed, but he breached that order by committing offences against young girls, in respect of which he subsequently pled guilty to two charges of causing girls aged 13 to exhibit themselves intimately to him via a webcam.

He also pled guilty to a contravention of section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 by making arrangements for one of these girls to travel to meet him for the purpose of sexual activity, as a result of which an extended sentence of five years was imposed, of which the custodial part was two years, but the current offences occurred when this sentence was in place.

Delivering the opinion of the court, the Lord Justice Clerk said: “There is a clear assumption in the submissions made that the court requires to advance through a step-ladder of sentences from short extended sentence, to longer extended sentence to OLR before deciding that an OLR is necessary. That is not the case, as is clear from the statutory provisions, and as was explained in Ferguson v HMA 2014 SCCR 244 at paras 103 and 104 (Lord Carloway) and 130 (Lord Drummond Young). The availability of other sentences may be relevant in considering what risk may be presented by the offender on release from any punative determinate sentence, but there is not an incremental ladder of sentencing options which must be gone through.

“As to the submissions made in relation to the 2005 Act, however an OLR may be considered as against an extended sentence, it is not the case that an OLR is meant to be more “punitive” than an extended sentence, and observations suggesting that the fact that an extended sentence is a more punitive sentence than formerly was the case are irrelevant: an OLR is about management of risk, not about punishment, and indeed the sentencing judge must remove from the punishment part those elements of a determinate sentence which would have been directed towards protection of the public.

“In the present case, the sentencing judge correctly noted that whether the risk criteria had been met remained a matter for her having regard to all the circumstances of the case, of which the RAR was only one, albeit an important one. The sentencing judge fully recognised that the decision was not one to be dictated by the RAR, but to be determined by her on an assessment of all the circumstances of the case.”

Lady Dorrian added: “On the material available, the sentencing judge was entitled to consider that the appellant presented with a pattern of sexual offending over a period from 2003 to 2014; that he had a propensity to commit offences of this kind; that the propensity was an enduring one; that the appellant was capable of producing an impression in professionals working with him that he was engaging effectively with work intended to reduce the risk of offending, when he was in fact not deriving a benefit from that work; that there were serious issues relating to his willingness to, or capacity for, change; and that the risk criteria were met. That being so, she had no option but to impose an OLR, and the appeal will be refused.”

As a postscript, the court considered that it was worth emphasising that prisoners subject to OLRs must have their cases reviewed “regularly” to ensure that continued custody is necessary to meet the aims of the OLR, and to ensure that the OLR does not become an “unjustified form of preventive detention”.